IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2015-CA-00671-COA
IN THE MATTER OF THE LAST WILL AND TESTAMENT OF MERLIN JOSEPH WAGNER, DECEASED: BRENDA SMITH APPELLANT

v. THE ESTATE OF MERLIN JOSEPH WAGNER, MERLIN JOSEPH WAGNER, JR. AND WAYNE A. COOK APPELLEES

DATE OF JUDGMENT: 03/20/2015 TRIAL JUDGE: HON. D. NEIL HARRIS SR. COURT FROM W HICH APPEALED: JACKSON COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: PAULETTE MCLEOD TURNER ATTORNEYS FOR APPELLEES: JOHN L. HUNTER HENRY P. PATE III NATURE OF THE CASE: CIVIL - W ILLS, TRUSTS, AND ESTATES TRIAL COURT DISPOSITION: SUMMARY JUDGMENT GRANTED IN FAVOR OF APPELLEES DISPOSITION: AFFIRMED - 08/09/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., WILSON AND GREENLEE, JJ. LEE, C.J., FOR THE COURT: ¶1. In this appeal, we m u st decide whether the J ackson County Chancery Court erred in granting s um m ary judgm ent in f a vor of M erlin W agner’s e state and deny i ng Brenda Sm ith’s

m otion f or reconsideration.

FACTS AND PROCEDURAL HISTORY ¶2. B r e n d a a n d h e r h usband, Merlin, owned and oper a t e d Wa g n e r H e a t i n g , A i r Conditioning and Electrical Co. Inc. ( W a gner Heating). I n 1983, Brenda and Merlindivorced. As part of the division of m arital property , the chancery court granted Merlin the

use and possession of the business prem ises at 1777 Old Mobile Highway , Pascagoula. And
Brenda an d M e r l i n w e r e granted joint use of t hirty -six acres of land in Colorado. The judgm ent of

divorce also included the f ollowing provision: [ Brenda] should be and she is hereby granted a one-half (1/2) interest in and to the business known as W agner’s H eating, A ir Conditioning and Electrical Co., Inc.[ ,] and a resulting or constructive trust to the extent of o ne-half (1/2) of t he s a i d b u s i n e ss is hereby given a n d granted f or the benef

it of [ Brenda]; f urther, t hat a lien m ay be im pressed against said business to secure [ Brenda’s] interest. ¶3. In August 1984, Brenda f i l e d f o r b a n k r u p t c y
. A r o und this tim e, Brenda f iled a

com plaint f o r citation f

or contem p t and other r elief in chancery court a gainst Merlin. In her bankruptcy petition, Brenda listed certain a s s e t s that were jointly owned with Merlin. To protect and preserve his interests, Merlin m ade an of f er t o the b ankruptcy t r u s t e e t o pay $35,000 f or: [ A] deed to the com m ercial property located at 1 777 Old Mobi l e H i g hway , Pascagoula, Mississippi, the Colo r a d o p roperty i ncluding the house trailer, and any o ther assets which a re j o i n t l y owned, plus an assum ption o f all of the outstanding balances . . . . ¶4. The bankruptcy trustee f i led a trustee’s application f or sale of p roperty with notice of

a “m o t i o n to sell [ Brenda’s] one-half i nterest in property .” In the application, the trustee listed specif

ic property

that was proposed f

or sale:
A. Com m ercial building, 1777 Old Mobile Hwy

. , P a scagoula, MS 39567[ ;]
B. Acreage w ith m obile home and im provem ents, Rullison, Colorado[ ;] And all personal property item s associated with each property

.
2¶5. On February 21, 1985, the bankruptcy judge entered an “order authorizing the trustee

to sell [ B renda’s] interest i n assets.” The o rder included t he f ollowing paragraph as part of
the sale:
All of [ Brenda]’s right, t itle[ ,] and interest in an d t o t h a t certain corporation chartered as W a gn e r ’ s H e ating, Air Conditioning & Electrical C o., Inc., a Mississippi corporation, including all of t he assets thereof , together with any and all claim s of any kind and nature which [ Brenda] ma y h a v e t h e rein and thereto[ .] ¶6. In March 1985, the bankruptcy trustee executed two trustee’s deeds: one convey ing
Brenda’s right, title, a nd interest in the real property located at 1777 Old Mobile Highway , Pascagoula, a nd another convey ing Brenda’s interest in the C o lorado pro p e r ty

. The bankruptcy court also entered an order o n M a r c h 1 5 , 1985, authorizing Brenda to proceed
on her com

plaint f or citation f

or contem pt in chancery

court. ¶7. S u b s e q u e n t ly , Merlin’s attorney entered a copy of the February 2 1 o r d e r i n t h e chancery -court r ecord. In a letter to Merlin’s attorney , Brenda’s attorney s tated the February
21 order was invalid and “ha[ d] not been processed.” Brenda’s a t torney also sent a letter to the bankruptcy judge stating t hat “we objected to the way t hat the O rder was draf t ed” and
that the order “had been processed and would li ke to take t hose steps n ecessary to set that Order aside with respect to Paragraph A only . . . .” ¶8. In Septem

ber 1985, Brenda requested copies o f a ll of the orders f r om the bankruptcy

court. The bankruptcy clerk enclosed a copy o f the court doc k e t a n d s t a t e d that it was “a
record of all m a tters brought bef ore the court in [ the] bankruptcy [ case].” The docket did not include the February

21 order.

3¶9. In May 1989, W agner Heating was adm inistratively dissolved. ¶10. In 2014, Merlin died, and W ay ne C ook Jr. was appointed executor of Merlin’s estate. Brenda f iled a petition to exert an ownership interest in the business assets and a m otion to intervene. Brenda testif

i ed that Merlin never paid her “one penny ” a f ter the divorce, and she
was so f rustrated by his f

ailure to pay

that she decided to wait until af t er his death to bring
any enf orcem ent action. ¶11. W a gner’s estate f

iled a m otion f

or sum m a r

y judgm ent, which was granted. Brenda
f iled a m otion f

o r r e c o n s ideration, which was denied in the chancellor’s f inal j udgm ent. Brenda appeals, asserting the chancery c ourt erred in f inding there was no genuine issue of

m aterial f act as t o whether Merlin purchased her one-half interest in W agner Heating. She
also asserts that the chancery court erred in f inding that even if there was a g enuine issue of

m aterial f act, her claim

is barred by

the statute of

lim itations or doctrine of laches.
STANDARD OF REVIEW ¶12. The g rant o f a m otion f or sum m a ry judgm e nt is reviewed de n ovo. K arpinsky v. A m. Nat’l Ins. , 109 So. 3d 84, 8 8 (¶9) (Miss. 2013). W e view the evidence “in t he l i g h t m ost
f avorable to the party

against whom

the m otion has been m ade.” Id.
Sum m ary j udgm ent i s appropriate and shall be rendered if the p lead i n g s, depositions, answers to interrogatories a n d a dm iss i o n s on f ile, together with the af f idavits, if any , s how that there is no genuine issue as to a n y m aterial f act and that the m oving pa r t y is entitled to [ a] judgm e nt as a m atter of law. Im portantly , the party opposing sum m ary judgm ent m ay not rest u pon the m ere allegations or denials o f h is pleadings, but his response, by af f idavit or as otherwise provided in [ Mississippi Rule of Civil Procedure 56], m ust set f orth specif i c f acts showing t hat there is a g enuine issue f or t rial. If he does not so respond, sum m ary

judgm ent, if

appropriate, will be entered against him

.

4This Court has explained that in a sum m ary judgm ent hearing, the burden of

producing evidence in support of , or in opposition to, the m o tion is a f unction of Mississippi r

ules regarding the b u r d e n of p roof at t rial on the issues in question. The m ovant bears the burden of persuading the trial j udge that: (1) no genuine issue of m aterial f act exists, and (2) on the basis of the f acts established, h e is entitled to [ a] judgm ent as a m atter of law. The m o vant bears the burden of production if , at trial, h e w ould bear the b urden of proof on the issue raised. In other w ords, the m ovant only bears the burden of production w h e r e [ the m o vant] would bear the burden of proof at trial. Furtherm ore , sum m ary judgm ent is a

ppropriate when the n on-m oving party h a s f ailed to m ake a showing suf

f i cient to establish the existence of an elem e n t essential to the party ’s case, and o n which that party will bear the burden of proof at trial.
Id. at 88-89 (¶¶10-11) (internal quotation m arks and citations om itted).
DISCUSSION ¶13. Brenda c laims t h e r e w a s a g e n u i n e i s s u e of m aterial f act as to w hether Merlin purchased Brenda’s one-half i nterest in W agner Heating. Brenda c laim s the only evidence
that she sold her interest i n the business is t he February 2 1 order, which was not entered into the docket as required by Federal Rules of

Bankruptcy

Procedure 5003 and 9021. ¶14. Rule 9021 provides that “[ a] judgm ent or order i s ef f ective when entered under Rule
5003.” Rule 5003(a) r equires the clerk to enter o n the of f icial d ocket “each judgm e nt, order,
and activity in that case.” And the term “judgm e n t” m eans “any a ppealable order.” F.R.B.P. 9001(7). “Theref

ore, any appealable order becom es ef f ective once e ntered on t h e C o urt’s
of f icial docket.” I

n re Saunders, 240 B.R. 636, 643 (S.D. Fla. 1999). ¶15. There d oes n ot appear to be a case that squarely addre s s e s t h e i s s u e in the present
action. For every case that states a n order m ust b e o f f icially docketed t o be ef

f ective, there is a case that say s otherwise. ¶16. In N

BD H ighland Park Bank N.A. v. W ien , 622 N.E.2d 123, 126 (Ill. Ct. App. 1993),

5the bankruptcy judge gave a n oral ruling t o rem and the ca s e to state court and to lif t an
autom atic stay on October 5, 1992. The orders were not docketed u ntil October 14 and 15, respectively

. Id. at 126-27. On October 12, 1992, bef o r e the orders were d ocketed, the disputed property

was sold. Id. at 126. ¶17. The W

i e n court stated that “ [ o]rders do not becom e f inal until they are docketed. The

reasons f or respecting f

inality of judgm ents do not apply to u ndocketed orders. They cannot be enf o rced. They c annot be appealed. Hence, judges m ay change t heir decisions until they

are d ocketed.” Id. a t 127 (quoting In re Am. P recision Vibrator Co. , 863 F.2d 4 28, 429 (5th Cir. 1989)). ¶18. However, the W

ien court distinguish e d i t s s e t o f f a c t s f r o m t h o s e i n N

o l i v.
Commissioner of

Internal Revenue , 860 F.2d 1 521 (9th Cir. 1988). “In Noli , the def endants
f iled bankruptcy petitions that autom atically stay ed a trial in t he t a x court.” W ien , 622
N

. E .2d at 127. “The governm e nt

. . . . m oved the bankruptcy court f o r reli e f f

r o m t h e
autom atic s t a y , w hich the court granted by an oral order.” Id. “The g overnm ent then
im m ediately proceeded with the trial based upon t he bankruptcy court’s u n d o c keted oral
order.” Id. “The def

endants a rgued that the tax court proceedings were im proper because
the b ankruptcy c ourt’s oral order l if ting the autom a tic stay had not been docketed.” Id. The
Noli court required that the petitioner establish that h e was prejudiced b y t h e b a n kruptcy
court’s f ailure to enter a judgm ent. Noli, 860 F.2d at 1525. Because the petitioners “were present w hen the oral order was issued and clearly had notice o f its existence and content,” the bankruptcy

court held that the order lif ting the stay

was ef f ective and binding upon the

6parties. Id.

¶19. In Saunders , the court dealt with a sim ilar situation, and we believe its r easoning is
instructive and should be f ollowed. The Saunders court wrote: Rather, com m on s ense d ictates that a c ourt’s order i s ef f ective when a court enters such an order.

. . . To hold otherwise would perm it the clerk’s of f ice to m isplace an order and prevent the j u d g e ’ s order f rom b ecom ing e f

f ective. Parties s h ould be able to r easonably r ely on a written order, signed by a Judge, that the party

has actually

received, even if

this Order does not get docketed.
Saunders , 240 B.R. at 644. ¶20. In the present action, Brenda had knowledge of the sign e d b a n k r u p t c y -court order
with a date stam

p of F e b r u ary 21. See id. Theref ore, t he order a

uthorizing the sale of
Brenda’s o ne-half interest in W a gner Heating was ef f ective. T he chancery court did not err in granting sum m ary

judgm ent. ¶21. THE JUDGMENT O F T HE CHANCERY C OURT OF J ACKSON COUNTY IS AFFIRMED. ALL C O S TS OF THIS A PPEAL A RE ASSESSED TO THE APPELLANT.
G RIFFIS , P . J . , B A R

N E S , I S H E E , C A R L T O N , W I L S O N A N D G R E E N L E E , J J . , CONCUR. FAIR, J., C O N CURS IN PART AND IN THE RESULT WITHOUT SEPARAT E W R I TTEN OPINION. JAMES, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION. IRVING, P. J . , CONCURS IN RESULT ONLY WITHOUT SEPARATE OPINION.

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